In the news item entitled “Duterte warns drug lords’ lawyers” written by Marlon Ramos of the Philippine Daily Inquirer (December 09, 2016), Duterte attacked the lawyers who defend individuals accused of violations of R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002, as amended) before the trial courts.
May I state my legal comments in reaction to Duterte's threatening statements that insult and undermine the integrity of the entire legal profession, the sanctity of the rule of law, the fair and effective administration of justice, the independence of the Judiciary, and the primacy of the Bill of Rights of the 1987 Constitution.
*** Duterte - “That’s their style. They were able to post bail because they have lawyers. They are good, high-profile lawyers. Then [their clients] will play again.”
A – Admittedly, criminal cases filed drug lords are capital offenses. They are punishable by reclusion perpetua (which others mistake as life imprisonment). The cases are non-bailable under RA 9165.
However, the accused, assisted by counsel, may apply for bail before the trial court, which may grant the motion when the prosecution fails to prove “that the evidence of guilt is strong”. The prosecution has the “burden of proof” in all criminal cases.
Bail is a constitutional right. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
Section 13, Article III (Bill of Rights) of the 1987 Constitution of the Bill of Rights provides:
“Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.”
The right to counsel forms part of the right to due process of law and the right to equal protection of the law of an accused.
Section 1 of the Bill of Rights provides:
Section 1. - No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Stressing the importance of the right to counsel, the first paragraph of Section 12 of the Bill of Rights provides “any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one.” It further provides that “these rights cannot be waived except in writing and in the presence of counsel.”
*** Duterte - “Even their lawyers, I will include them.”
A – This statement of Duterte constitutes grave threat and grave coercion against the legal profession. It is a criminal offense. His intent is to communicate the message to the legal profession that he shall harm, injure, or kill lawyers who perform their oath to defend the constitutional rights of their clients, whether or not they are alleged drug lords, undergoing criminal trial before the courts.
It is a ground for impeachment.
Section 1, Article XI (Accountability of Public Officers) of the 1987 Constitution provides that “public office is a public trust”; and that “public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives”.
“Betrayal of the public trust” is a ground for impeachment under Section 2 of Article XII.
It provides that “the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust”.
Duterte’s threat and coercion violate R.A. 6713 (Code of Ethical Standards for Public Officers and Employees).
Section 2 (Declaration of Policies) of RA 6713 declares that “it is the policy of the State to promote a high standard of ethics in public service”; and that “public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest”.
It is appropriate to reproduce in full Section 4 (Norms of Conduct of Public Officials and Employees) of RA 6713 to prove the exacting demands that the code of ethical standards impose on public officials and employees, especially on Duterte as head of state and father of the nation:
“Section 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties:
(a) Commitment to public interest. - Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.
(b) Professionalism. - Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.
(c) Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs.
(d) Political neutrality. - Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference.
(e) Responsiveness to the public. - Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas.
(f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion.
(g) Commitment to democracy. - Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party.
(h) Simple living. - Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.
Duterte’s statement, more so when translated into action, causes “undue injury” to lawyers. It violates Sec. 3 of R.A. 1319 (Anti-Graft and Corrupt Practices Act) which provides:
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
*** Duterte - The people should understand the “role of law” instead of focusing only on the “rule of law.”
A – I do not know how Duterte exactly contradistinguishes “role of law” from “rule of law”. He did not explain his theory.
It appears that to Duterte the “role of law” is to arrest, try, convict, and punish an accused. Nothing else.
He is wrong. The “role of law” and the “rule of law" is to insure that “justice is done” and “not to persecute” (which is the prostitution of the prosecution).
The prosecution must prove its case. It has the burden of proof to convict an accused. The accused is presumed innocent until proven otherwise.
Section 14 of the Bill of Rights provides that “no person shall be held to answer for a criminal offense without due process of law”.
It provides that in all criminal prosecutions the accused “shall be presumed innocent until the contrary is proved’. He shall enjoy the following rights:
(a) The right “to be heard by himself and counsel”,
(b) The right “to be informed of the nature and cause of the accusation against him”;
(c) The right “to have a speedy, impartial, and public trial”;
(d) The right to “to meet the witnesses face to face”;
(e) The right “to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf”.
Section 12 and Section 19 of the Bill of Rights is very specific on the following rights of the accused:
1. “No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him”.
2. “Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited”.
3. “Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him”.
4. “The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families”.
5. “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted”.
6. “Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it”.
7. “Any death penalty already imposed shall be reduced to reclusion perpetua”.
8. “The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law”.
*** Duterte - “That’s the reason why I’m angry because it is not a simple police matter. It is an assault on my country. If you put us in a bad situation, we will come up with a failed state.”
A – The cause of the institutional failure of the Philippines as a state under the Duterte regime would not be the legal profession or the criminal justice system but Duterte himself, his creeping totalitarianism, autocracy, and Nazi-type repression and cruelty, his notorious inconsistency, dishonesty, and narcissism, and his violations of the 1987 Constitution and existing laws and jurisprudence.
More importantly, he is prone to ignore Article III of the 1987 Constitutional which provides for the “independence of the Judiciary” and its “expanded power of judicial review”.
Duterte - “What is the role of the law knowing fully well how fast we can produce a conviction? Up to the Supreme Court, how many years? While they are playing, they can give you [bail] bond, then they will [return to selling illegal drugs].”
A – Delay is a major problem in all three co-equal branches of the government, not only in the Judiciary.
The preliminary investigations of criminal cases by the National Prosecution Service under the Department of Justice, the adjudication of cases by quasi-judicial agencies, the investigations of crimes and the arrest of the accused by the law enforcement agencies, and the processing of the grant of executive clemency to convicted inmates, which are all under the Executive, suffer from delay.
The legislative process in Congress, from the investigations in aid of legislation phase to the final adoption of the enrolled bills phase, by the two Houses thereof, suffer from delay.
The Judiciary, whose trial courts are burdened by pending cases ranging from 500 to 1,500 cases (or even more) per sala, is not an exception to delay. There are approximately 500,000 pending cases nationwide. There around 800 trial courts that are vacant for lack of qualified judicial applicants.
There are missions in public service that are physically impossible to achieve because of human limitations and constraints in fiscal resources.
It must be noted that since the 1986 Edsa People Power Revolution, the Judiciary has taken serious and long-term programs to reform the Justice System, the Rules of Court, the Case Management Systems and Procedures in all trial courts, the Mandatory Continuing Legal Education of the Bench and the Bar, the Free Legal Aid Fund, the construction of well-equipped Halls of Justice nationwide, and many others.
To read the past and present improvements in the foregoing issues, visit the Supreme Court website (www.sc.judiciary.gov.ph) and its relevant links.
We thank the USAID, the European Union, Canada, Australia, Germany and other Western countries for their grants, aids, and loans in this regard.
*** Duterte - “Of course, I cannot prove my case beyond reasonable doubt. I know that. I’ve been a prosecutor for years. But to build a case, just select one. We have to assign about four or five operatives.”
“We do not have the money and we do not have the manpower. That’s why I had to declare a state of lawlessness to justify the entry of the military to do police work and to be of assistance to the police. I really lack manpower.”
A – I exhort Duterte: Obey the Bill of Rights of the Constitution and the Rules of Court. If you cannot prove beyond reasonable doubt your suspicions and accusations, that means you do not have well-developed cases that are enough to convict the accused beyond reasonable doubt.
You need to improve the professional competence and resources of your law enforcement and security agencies.
You must achieve your goal of establishing a ‘peace and order paradise” in the Philippines “within six months from your assumption to office” (June 30, 2016) without throwing the dead bodies of 100,000 suspects in the Manila Bay.
Do you still remember your campaign promise to the Filipinos that they can “kill you” if you fail to attain your goal within six months?
If you lack the manpower and the resources to achieve your (impossible) goals, the people ask: Why did you increase your intelligence funds (which are not subject to audit), your discretionary funds, and travel and representation funds for 2017 while decreasing the funds of many agencies under you that ultimately impact on law enforcement, security, and social justice?
I see your speeches as excuses for your incompetence. A narcissistic hypocrite, you promised too much during the campaign. You fooled the gullible and ignorant sixteen million Filipinos who voted for you.
Atty. Manuel J. Laserna Jr.
Partner, Laserna Cueva-Mercader Law Offices
Professor of Law, FEU (1985-2006)
Founder, Las Pinas City Bar Association (2001)
Vice President, IBP Pasay Paranaque Las Pinas
Muntinlupa (PPLM) Chapter (2004-2007)
Third Place, 1984 Bar Examinations (90.95%)
Las Pinas City, Philippines
December 10, 2016